Alabama Machinery & Supply Co. v. Roquemore

Decision Date20 January 1921
Docket Number3 Div. 498
Citation205 Ala. 244,87 So. 435
CourtAlabama Supreme Court
PartiesALABAMA MACHINERY & SUPPLY CO. v. ROQUEMORE.

Appeal from Circuit Court, Montgomery County; William L. Martin Judge.

Detinue by the Alabama Machinery & Supply Company against H.L Roquemore, as trustee in bankruptcy, for an elevator and fixtures. Judgment for the defendant, and plaintiff appeals. Affirmed.

Ball &amp Beckwith, of Montgomery, for appellant.

Hill Hill, Whiting & Thomas, of Montgomery, for appellee.

THOMAS J.

The action was in detinue for an electric elevator installed in defendant's storehouse by a tenant.

On July 6, 1912, the appellee leased to the George B. Wragg Furniture Company, a corporation, the premises in question for a term of five years, commencing October 1, 1912, at the annual rental stipulated. A material part of said lease is the following:

"It is further understood and agreed and a part of the consideration for which above store is leased and we hereby bind ourselves and agree to put in and install at our own expense an electric elevator at store No. 26 So. Court street. Said elevator to cost not less than $1,000.00, and is to be installed and put in operation on or before April 1, 1913. If we fail to put in said elevator by said date, we hereby agree to pay monthly an additional rent of $16.65 per month from October 1, 1912, to the termination of this lease, September 30, 1917."

This lease was subsequently renewed for a period of two years, which renewal contract was not in evidence; but it was proved by the appellee that the rental charge was increased, and that the contract contained no reference to an elevator.

On November 11, 1915, the appellant wrote a letter to the Wragg Company, offering to install an elevator in the premises. This proposal was accepted in writing on its margin by the Wragg Company, and was recorded in the probate office of Montgomery county on June 3, 1919. The appellant proved that this first proposal was not satisfactory to the Wragg Company, who insisted on specifications and terms, and that on November 27, 1915, appellant made a (second) proposal in great detail, which was also accepted in writing by the Wragg Company. Proposal No. 2 referred to proposal No. 1 for its terms of deferred payment, and stipulated that title to the elevator should remain in appellant until fully paid for. The two proposals were signed at about the same time, and were intended to constitute one contract. Proposal No. 2 was never recorded. The elevator was not installed until some time in 1917.

The appellee proved that at some time in 1915 the Wragg Company went into bankruptcy, and that she then claimed as rent something over $400 against the bankrupt estate, and when the elevator was installed in 1917, allowed this $400 as a credit on the rent. She further proved that she sued the Wragg Company in unlawful detainer at some time in 1919, and got possession of the premises on May 19, 1919; and that she sued on the notes for rent and obtained judgment on June 18, 1919, for $850; that this elevator was put in as a part of the consideration of the lease, and Wragg Company was to pay $1,600 per annum; that the elevator sued for (in this case) was never attached or levied on by the appellant.

The appellant's evidence tended to show that it never succeeded in satisfying the Wragg Company with the elevator; that payments were made from time to time in small amounts, but that at the time this action was commenced there was still due a balance of $562.14 of the original purchase price; that this sum was represented by 11 promissory notes, dated March 22, 1919, executed by the Wragg Company, payable in the event the elevator should be made satisfactory; that none of these notes were ever paid; that they contained a stipulation, retaining title in the appellant until all of them should be paid; and one of the notes was recorded in the probate office of Montgomery county on July 3, 1919. The appellant proved that on June 2, 1919, it wrote a letter to defendant's agent, demanding possession of the elevator; and the Wragg Company agreed upon a rescission of the elevator contract (July 10, 1919) after the termination of the lease. Appellant's counsel admits that--

"There are several conflicts in the testimony as to whether or not the appellee had notice of appellant's claim to the elevator, whether or not appellant had notice of appellee's possession of the premises, and whether or not the removal of the elevator would injure the premises."

We will first dispose of the several rulings on the introduction of evidence to which exceptions were reserved. The court did not err in sustaining defendant's objection to the question propounded to Mr. Fischesser:

"Has the title to this property passed out of the Alabama Machinery & Supply Company at any time?"

This was one of the issues to be tried, and the conclusion of fact was to be drawn by the judge sitting without a jury. McMillan v. Aiken, 88 So. 135; Miller v. Whittington, 202 ala. 406, 80 So. 499; Standard Cooperage Co. v. Dearman, 86 So. 537; Sovereign Camp W.O.W. v. Eastis, 89 So. 63.

The plaintiff's secretary and manager, Mr. Fischesser, who, as a witness in its behalf had testified that plaintiff had never "gotten the Wragg Company to accept the elevator, and the plaintiff itself did not think that it had complied with its contract until just before the paper was recorded in June, 1919," was asked by defendant:

"If you had not complied with your contract, tell us what was left undone that you think should have been done."

This was proper, on cross-examination, to test the knowledge of the witness of the fact of noncompliance of the contract by which the elevator was installed. Moreover, if it had been objectionable, no grounds of objection were assigned. B.R., L. & P. Co. v. Saxon, 179 Ala. 136, 59 So. 584; Rutledge v. Rowland, 161 Ala. 114, 49 So. 461; Adams Hdw. Co. v. Wimbish, 201 Ala. 547, 78 So. 901.

The rescission of the contract sought to be shown by plaintiff's letter of July 10, 1919, to George B. Wragg Furniture Company, and the written consent thereto by said Wragg Company (of same date), after the defendant landlord had paid Wragg Company for the elevator and after the latter had been evicted as a tenant and was a bankrupt, was immaterial evidence, and properly rejected by the trial court, on defendant's objection.

Plaintiff did not sufficiently assign grounds of objection to the question asked Mr. Stuart, a contractor of experience, as to elevators and their use or installation in buildings, and of the elevator in question as installed by the Wragg Company or plaintiff in defendant's building. The question, objection thereto, answer, and motion to exclude are exhibited by the bill of exceptions as follows:

"If that elevator is taken away, what would by [be] the effect upon the building?"

The plaintiff objected. The court overruled the objection, and to that ruling the plaintiff then and there duly and legally excepted. The witness answered:

"It would leave three holes that would be undesirable."

The plaintiff moved to exclude the answer of the witness, which motion was overruled by the court, and to that ruling the plaintiff then and there duly and legally excepted. Nothing was presented for review. Sovereign Camp of W.O.W. v. Keefe, 203 Ala. 636, 84 So. 810; Adams Hdw. Co. v. Wimbish, supra; Rutledge v. Rowland, 161 Ala. 114, 49 So. 461.

Thereafter the witness testified:

"That the joists had been cut in order to make the three holes in the floors, and that to restore them it would be necessary to put in new joists, and to put in new joists it would be necessary to remove the floors; that an elevator was a desirable thing in a store of that kind, and almost a necessity for the good use of the building; that it adds to the value of the building, and could be used in almost any commercial business, and that a store building of the kind in question was generally used for commercial business;" that "the elevator platform or cage might be removed without hurting the building, also the cables, *** pulleys and gears at the top, also the motor; that the runners seemed to be supporting the tail joists; that there was a runner on each side; that the entrance to the elevator faced the wall, and the hatchway guides were out from the wall midway of the hole; that if the guides were taken away it would not affect the joists that had been cut off; that the joists to which the runners were fastened ran into the wall; that the joists that had been cut had a header on them which was spiked to the tail joists, and that the runners were bolted to the tail joists that were not cut were creating a support for the tail joists; and that the tail joists were carrying the extra burden from the joists that were cut." Jones v. Bell, 201 Ala. 336, 77 So. 998.

The plaintiff's attorney asked the witness:

"With the exception of the joists everything could be removed without affecting the building?"

--and the witness answered that:

"There is some housing all around the well;" that, "it would not be necessary to cut any joists to remove the elevator; that to remove the housing around the elevator well would only affect the appearance of the place, and that the holes would be in the floor whether the elevator was there or not; that the only material damage to the building would be the support that the tail joists get from the guides which they would not get if the guides were removed; and the damage from the floor of the elevator being removed; that the guides were bolted to the joists."

From this and other evidence the real question propounded by the pleading is: Was the elevator as installed in defendant's building a "trade fixture," the title to which was...

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